Trump’s Contempt for the Law Will Be His Downfall

Michael Cohen’s guilty plea this week, on charges including campaign-finance violations, brought the investigations directly to the president. It has also, however, supplied Donald Trump and his allies with new material with which to cry “witch hunt.” Having argued all along that the investigations are political in character, they point now to strained legal claims focused on Trump’s sexual history. Distasteful, yes, they say; but it has “nothing to do with Russia,” and the charge’s evident purpose is to sully the president and to find some basis on which to bring him down.

In the days ahead, that message will surely also include references to the juror who voted to convict Paul Manafort, but told Fox News that she believed that the prosecutors aim was to flip Manafort for “dirt” on Trump. In this way, Trump will attempt to situate himself squarely in the tradition of other subjects of public-corruption prosecutions who, facing legal and political ruin, blame high political intrigue and low motive.

This defense only succeeds to the extent that it breaks into smaller pieces the larger story of the president’s legal troubles, systematically distorting and misrepresenting each element to make the whole seem less than the sum of its parts. So Trump maintained that former National-Security Adviser Michael Flynn, who pleaded guilty for lying to the FBI, had to go only because he lied to the vice president, and otherwise was blameless for the dealings with the Russians about which he lied. He dismissed his former campaign adviser George Papadopoulos, who lied to investigators about his contacts with Russians, as a “low-level volunteer.” His answer to the Cohen plea is that his former lawyer and friend is a liar, not to be trusted. He has depicted Manafort as “brave,” a distinguished member of the Republican consulting community who only landed in the sights of prosecutors because of his late and brief ties to Trump and his refusal to “break” under the threat of jail time.

Eventually, the whole Robert Mueller investigation will reach its conclusion and the story will be restored to clear view. But even now we know what Trump seems unable to comprehend—that he is a key reason why the investigation keeps going. This is not because he is reviled by the establishment for his politics, but because of what the investigation and his response have already revealed about this character: his disregard of legal limits when it is in his personal and political interest to ignore them, and his persistent failure to render an honest accounting of his actions. Although not quite in the way that he imagines, Trump is, in fact, what ties all these pieces together and assures that the inquiry will, as it must, continue.

Trump, although fully entitled to defend himself against the investigation, has failed to negotiate the boundary between legitimate self-defense and obstruction of justice, and in attacks such as those on his attorney general and his failed courtship of former FBI Director James Comey, he has indicated in no uncertain terms that he expects loyalty rather than fidelity to the law. He recently said of Attorney General Jeff Sessions: “The only reason I gave him the job was I felt loyalty.” He has dangled pardons for crucial witnesses, raising legitimate questions of whether he has engaged in witness tampering. In recent days, he has declared, “campaign-finance violations are considered not a big deal.” Throughout the investigation, as issues have publicly surfaced, the president has lied time and again. He lied about the payoffs to Stormy Daniels and Karen McDougal, and about the purpose of the Trump campaign meeting with Kremlin emissaries in the summer of 2016.

Trump’s chronic scorn for the law and legal institutions, together with his trademark dishonesty, are not the only ways in which the president has presented the prosecutors with a damaging picture of himself and his motives. Those attributes appear in the specifics of his conduct as both president and, before then, as candidate, and it is reflected in the conduct of many of those whom he has chosen to assist him in his affairs. There is no indication that the Trump campaign sought advice of counsel about the Trump Tower meeting with the Russian delegation. Trump did not seek legal counsel when he dictated the fallacious statement about the meeting on behalf of his son. Not a lawyer other than Cohen, who does not appear to have been advising on the law, shows up in the emerging narrative about the hush-money payments to McDougal and Daniels. When the president does see the need for lawyers, it is evidently to have them say what he would like to hear.

In the light of this emerging picture of the president, prosecutors have ample reason to discount his stream of vehement denials and to persist in looking closely at the evidence of a deal with the Russians for help with the campaign and then covering it up. The president’s lack of credibility in his legal affairs would only bolster the prosecutors’ conviction that they should be thorough and run every lead to ground.

This is not to suggest, as some Trump defenders do, that the Mueller and Southern District of New York investigations somehow bear a troubling resemblance to those conducted in years past by independent counsels who stalked their legal prey endlessly and relentlessly in search of wrongdoing. The Mueller investigation has been focused and stayed far away from the press. In less than a year and a half, it has obtained multiple pleas and now the Manafort conviction. In addition, it has produced an extraordinarily detailed indictment of Russian nationals engaged in massive interference in the U.S. electoral process. The Southern District has turned in a similarly brisk performance in the prosecution of Cohen. None of the charges has been trivial: massive fraud involving millions of dollars, lies to investigators, and direct foreign-national spending in violation of federal campaign-finance law.

It is obviously unhelpful to the president and his administration to be faced with these legal pressures, but it does not make him victim, and it is especially misguided to suggest that his official responsibilities should spare him full accountability. Even prominent critics of the old independent-counsel statute, who feared that it promoted a dangerous prosecutorial single-mindedness, concurred in the general proposition that allegations of presidential misconduct required rigorous review. In one notable joint statement of this position, attorney generals who served in the Carter, Ford, and Reagan administrations questioned the constitutionality of independent counsels but still affirmed to the Supreme Court that that “high government officials … should be held to a high standard of responsibility, and it is especially important that public confidence in government not be impaired.”

But now that Cohen has pleaded to campaign-finance charges and directly implicated the president, is this the first time the prosecutors have overreached, tarring Trump with uncomfortable but irrelevant personal matters? Trump’s supporters argue that the case shows that the prosecution’s goal was only to get the president, perhaps also flipping Cohen to extract more damaging information about him. It has “nothing to do” with Russia.

But it does.

Cohen, his former lawyer and one of his closest associates, has testified to a scheme that, at the bottom, involves breaking the law to win an election. On an issue of the highest importance to the campaign—the president’s behavior toward and with women—the campaign, Cohen, and political allies at the media company American Media (AMI) used hundreds of thousands of dollars to bury the damaging information. To do this, they had to violate the limits on contributions, the ban on corporate spending, and the campaign law’s public-reporting requirements. Moreover, Cohen has stated that this was all done in coordination with and at the direction of the president.

This do-what-it takes indifference to the law tracks closely the Russian evidence known to date. Here, too, was a campaign priority—stay on the attack on alleged Hillary Clinton misdeeds, most prominently campaign “email” issues. They received an offer of assistance from a lawyer they were told represented the Russian government, and the campaign hosted her in New York, with Manafort and others in the senior-management team in attendance. This was not the only such contact, but it was a dramatic acceptance of Russian government assistance, following a clear statement in the email traffic preceding the meeting that left no doubt of Kremlin sponsorship of the initiative. As in the Cohen campaign-finance matter, there is no indication that lawyers were consulted or that anyone considered the legal issues. In both cases, the president and his representatives lied about the nature of the meeting. The president participated directly in the falsehoods by dictating the subsequent statement mischaracterizing the nature of the meeting. And all of this is only what we know so far about the campaign-Russia alliance, except that there were a range of other contacts with the Russians that remain the subject of investigation.

There are two distinct ways in which Trump’s presidential campaign appears to have engaged in major violations of the law in its quest for electoral success. Moreover, these are both cases where the president and his team dissembled and attempted to cover their tracks, both before and after November 2016. Prosecutors appear to have locked down the campaign-finance case, securing the Cohen plea, seizing other evidence from the raids on his home and office, and obtaining the cooperation of key witnesses, including through a grant of full immunity to the AMI chairman and to the Trump organization’s chief financial officer. Meanwhile, linking the prosecution of this case to the Russia matter, Cohen’s lawyer claims he has information to share with the special counsel “regarding both knowledge about a conspiracy to corrupt American democracy by the Russians and the failure to report that knowledge to the FBI.”

Some, like Alan Dershowitz, have worked hard to water down the president’s exposure on legal issues, arguing that election laws are “convoluted” and that the president has constitutional defenses. His grasp on election law is, at best, tenuous. Yes, campaign-finance laws can be complex, and the provisions that apply to the hush-money payments made to conceal affairs can pose challenges on the issue of motive. But the rules call for a case-by-case assessment of purpose where the issue is whether a payment is campaign-related or personal. The test is whether the candidate or a third party would have spent the funds “irrespective of candidacy.” Even highly personal expenses can fall on the campaign—and therefore, regulated—side of the line, depending on the facts. For example, the Federal Election Commission has approved a candidate’s use of campaign funds for child care in circumstances where she was the primary caregiver and her spouse, who worked full time, could not assume those responsibilities. The agency held that the additional child-care expenses were a “direct result” of the campaign activity. Had a friend of the family or supporter paid them, the expenditure would have been treated as a contribution to the campaign, subject to limits and reporting.

As in that case, the facts will determine what motivated the Trump financial arrangements to pay Daniels and McDougal for their silence. The government appears to have amassed powerful evidence on that point. Set aside for a moment Cohen’s direct witness testimony, the election-year and election-eve timing of the payments, or the other physical evidence the government obtained in its raids on the Cohen home and office. When, according to the criminal information filed in court, an AMI executive advised Trump that failing to pay off Daniels would have “awfully bad” consequences, it was unlikely that the company was worried in October 2016 about his marriage. All the facts now on the record indicate that the hush-money payments were the “direct result” of Trump and his campaign’s conclusion that he could not politically afford to have these relationships disclosed weeks before the election.

Moreover, the Department of Justice has for some time provided guidance on the relevance of schemes of concealment to the establishment of criminal intent. It has stated that the establishment of a “knowing and willful” violation of the law can rest on “an attempt to disguise or conceal financial activity regulated” by the federal campaign-finance laws. The criminal information speaks clearly to this aspect of a solid criminal case.

As for constitutional defenses, Russians have no First Amendment rights to influence U.S. elections, and Americans have limited constitutional defenses when actively helping them do so. A challenge to the constitutionality of the broad ban on foreign-national spending—which includes providing anything of “value” to a campaign—failed before the courts: The Supreme Court authored a decisive and unanimous ruling upholding a lower-court opinion authored by Judge Brett Kavanaugh. A presidential campaign defending its knowing solicitation of, and support for, illegal foreign-national interference in a U.S. election should expect no greater success.

Trump would have his supporters believe that he faces these serious legal problems only because his adversaries wish to dispute the legitimacy of the election. He is deceiving himself or his intended audience, or both. The effect of any criminal conduct on Trump’s victory in 2016 is a sure topic for political debate and years of scholarly analysis. It is beside the point of the current investigations, which is to determine whether there was such conduct.

Richard Nixon, his administration and his campaign’s various criminal acts, the substantive crimes, and the cover-up have come to be loosely packaged under the name “Watergate.” The scandal is more generally understood to refer to a president who did, authorized, or encouraged whatever he thought it took to win without regard to legal and ethical constraints, and then directed a cover-up. It all came down to a question of character and a president’s respect for law. Each day that Donald Trump lies, tweets his contempt for the legal process, and dangles pardons for witnesses, the 37th and 45th presidents come to seem ever more alike and their presidencies—one infamous for “Watergate” and the other for “collusion”—may prove to have been shortened for much the same reasons.

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Bob Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law and a former White House counsel to Barack Obama.